Giambartolomei v. Rocky DeCarlo & Sons, Inc.
Giambartolomei v. Rocky DeCarlo & Sons, Inc.
Opinion of the Court
This action was brought by the plaintiff against Rocky DeCarlo and Sons, Inc., hereinafter called the corporation; its agent, Russell McKeithen; and Nicholas Barzetti, administrator of the estate of Charles Barzetti and hereinafter called the administrator. The plaintiff sought recovery for personal injuries alleged to have been sustained as the result of the negligence of Charles Barzetti and the defendant McKeithen. The jury returned a verdict for the plaintiff. Prom the judgment rendered thereon all the defendants have appealed. The administrator claims that the court erred in refusing to charge as requested by Mm and in denying his motion to set aside the verdict. The other defendants assign as error the court’s denial of their motion to set aside the verdict. By stipulation this appeal is determinative of the issues in another case in which the same questions of law are presented.
The plaintiff offered evidence to prove the following facts: On January 22, 1952, at about 2:15 p.m., he was a passenger in the front seat of an automobile owned by Charles Barzetti, who was driving it in a northerly direction on Wilson Avenue, a public
The corporation and McKeithen offered evidence to prove that the truck, equipped with “snow tread” tires, was proceeding southerly at a speed of about twenty-five miles per hour; that as it came around the curve McKeithen saw the Barzetti car eighteen or nineteen feet away, proceeding at about the same speed as that of the truck; that Barzetti had the wheels of his car turned to his right; that the Barzetti car was in a skid; that it crossed over to its left and collided with the truck, which had been brought to a stop on the west side of the road; and that the truck was at all times on its own side of the road.
The administrator offered evidence to prove that Charles Barzetti was, at all times, operating his car on his own side of the road; that it was not traveling fast; that McKeithen had driven the truck on the inside of the curve and it was on the east side of the highway; that Barzetti was faced with an emergency created solely by McKeithen and that the Barzetti car came to rest completely on its own right-hand side of the road.
The administrator contends that the trial court erred in not charging, as requested, that if the jury should find that “Barzetti crossed over the center line of the road involuntarily and without fault . . . such crossing would not be in violation of the rules of the road.” It is clear that the administrator, in using the words “involuntarily,” “crossed” and
The court did not adopt the language in which the request to charge was couched. Nevertheless, error may not be predicated upon the failure of the court to charge in the exact language of the request when the subject has been fully and accurately covered in the charge. Jacobs v. Swift & Co., 141 Conn. 276, 280, 105 A.2d 658. The court performs its duty when
The corporation and McKeithen contend that the testimony of witnesses as to the physical and other facts demonstrates the untruthfulness of the plaintiff’s testimony and that, therefore, the court erred in denying their motion to set aside the verdict. The administrator claims that, since the testimony of the plaintiff contradicted that of McKeithen and placed all of the blame on the latter and since the jury found the issues against McKeithen and the corporation, the verdict should not have been against him, the administrator, and that the court erred in denying Ms motion to set it aside. It is the duty of the trial court to set aside the verdict if it is apparent from the physical facts that the jury were swayed by improper motives. Joanis v. Engstrom, 135 Conn. 248, 251, 63 A.2d 151. We cannot say, however, that, from the evidence of the physical facts, it is apparent that the jury were influenced improperly. The jury are the judges of the credibility of witnesses, whether the contradiction is between different witnesses or between differing statements made by the same witness. Zullo v. Zullo, 138 Conn. 712, 715, 89 A.2d 216. The jury decide what weight justly belongs to the evidence. If the verdict to which they have agreed is a conclusion to which
The propriety of the court’s refusal to set aside the verdict is to be tested by the evidence most favorable to the plaintiff. Long v. Savin Rock Amusement Co., 141 Conn. 150, 153, 104 A.2d 221; Markee v. Turner, 140 Conn. 701, 702, 103 A.2d 533; Sanderson v. Bob’s Coaster Corporation, 133 Conn. 677, 678, 54 A.2d 270. The concurrence of the judgments of the judge and the jury who saw the witnesses and heard the testimony is a powerful argument for sustaining the action of the trial court. We are to decide only whether there was evidence which the jury could have reasonably credited and from which they could have fairly reached the conclusion they did. In the last analysis, the defendants ask that this court retry the case on the evidence. We do not do this. Taylor v. Corkey, 142 Conn. 150, 155, 111 A.2d 925. The court did not err in denying the defendants’ motions to set aside the verdict.
Certain of the administrator’s assignments of error are aimed at correcting the finding. “The finding, in the case of a jury trial, will be corrected only when it is reasonably necessary to fairly present a claimed error in law made by the court.” State v. Gargano, 99 Conn. 103, 106, 121 A. 657; Cornwell v. Rosoff, 137 Conn. 458, 460, 78 A.2d 544. Here no
There is no error.
In this opinion Inglis, C. J., and Wynne, J., concurred.
Dissenting Opinion
(dissenting in part). I agree that there was no error as to either of the defendants in the court’s refusal to set the verdict aside on the ground that it was against the evidence. The refusal of the court to respond to the defendant administrator’s request to charge that if the jury found that the Barzetti car crossed the middle line of the road involuntarily and without fault, that crossing would not be in violation of the rules of the road was, as to the defendant administrator, harmful error. McKeithen, the driver of the DeCarlo truck, testified that when he first saw the Barzetti car it was on its own side of the road but that it skidded across in front of his truck and collided with it. It was in the light of this claim, no doubt, that Barzetti filed his request. The court did charge the jury with reference to liability for skidding and the conduct of a driver confronted with an emergency. It then read the statute which required the operator of a vehicle meeting another on a public highway to “seasonably turn to the right so as to give half of the traveled portion of such highway” to the person so met. General Statutes § 2489. When evidence is offered to prove a certain set of facts important to the decision of the case and a party desires the court to charge the law applicable to those facts, it is the duty of that party to request an appropriate charge. It is the duty of the court to comply in substance with the request. Tyburszec v. Heatter, 141 Conn. 183, 187, 104 A.2d 548; Lewandoski v. Finkel, 129 Conn.
In this opinion O’Sullivan, J., concurred.
Reference
- Full Case Name
- Nazzareno Giambartolomei v. Rocky DeCarlo and Sons, Inc., Et Al.
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- 39 cases
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- Published